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1 - 4 of 4 (0.16 seconds)Ramcharan Mahto And Ors. vs Custodian Of Evacuee Property And Anr. on 1 May, 1963
1. When these two second appeals came up for hearing before a learned Single Judge of this Court, they were referred for decision by a Division Bench. The Division Bench thought that apparently there was a conflict between two Bench decisions of this Court in Ramcharan Mahto v. Custodian of Evacuee Property, Bihar, AIR 1964 Pat 275 and State of Bihar v. Jiwan Das Arya, 1970 BLJR 843 = (AIR 1971 Pat 141) on the question as to whether the right to get a notice under Section 80 of the Code of Civil Procedure (hereinafter called the Code) can be waived or deemed to have been waived under certain circumstances.
Bachhittar Singh vs The State Of Punjab on 7 March, 1962
8. To what relief or reliefs, if any, the plaintiffs are entitled ?''
Point No. 3 was decided by the learned Additional District Judge against the plaintiffs; that made the suit filed by them not maintainable. The lower appellate Court, however, proceeded to decide other points also. A decision of point No. 2 also was given against the plaintiffs and it was held that the decision taken by the Cabinet was not justiciable and unless an order expressed in the name of the Governor followed, the plaintiffs had no cause of action. It may also be added on the authority of the decision of the
Supreme Court in Bachhittar Singh v. State of Punjab, AIR 1963 SC 395 that unless the order was communicated to the parties, it was not effective. Even after the decision of this point against the plaintiffs, the learned .Additional District Judge proceeded to decide points 4, 5 and 6 and on those points recorded findings against defendant No. 4. Although in view of its decision on points 2 and 3, the lower appellate Court maintained the dismissal of the suit, defendant No. 4 feeling aggrieved by the decision of the learned Additional District Judge on points 4, 5 and 6 preferred Second Appeal No. 728 of 1969, lest the finding recorded by the Court of appeal below may operate as res judicata in a subsequent suit or in a subsequent proceedings on the same issues. Second Appeal No. 736 of 1969 was preferred by the plaintiffs against the judgment and decree of dismissal passed by the Courts below.
Gangappa Gurupadappa Gugwad Gulbarga vs Rachawwa,Widow Of Lochanappa Gugwad ... on 23 October, 1970
3. Learned Counsel for the plaintiff respondents in Second Appeal No. 728 of 1969 raised a preliminary objection to the maintainability of this appeal on the ground that defendant No. 4 had no right to prefer this appeal because the suit was ultimately dismissed even by the lower appellate Court During discussion of this preliminary objection raised on behalf of the plaintiff respondents a question arose whether the decision of the lower appellate Court recorded against defendant No. 4 would operate as res judicata in a subsequent suit or proceeding or not. Mr. J. C. Sinha, learned Counsel for defendant No. 4 said that it may be that because of the decision of the Supreme Court in the case of Gang-appa Gurupadappa Gugwad v. Rachawwa, AIR 1971 SC 442 the decision of the lower appellate Court on points 4, 5 and 6 will operate as res judicata in a subsequent suit or proceeding. We, however, think that the decision of the Supreme Court is clearly distinguishable. Had the dismissal of the plaintiffs' suit been maintained only because of absence of notice under Section 80 of the Code, it may well be that the decision on the other issues recorded in favour of the plaintiffs would have operated as res judicata. But the vital distinction in the present case is that even on point No. 2 the decision has gone against the plaintiffs. When it was held that the decision taken by the Cabinet was not justiciable, the effect of this decision was that the suit of the plaintiffs was premature and they had no cause of action to challenge the decision of the Cabinet, even if there was any and, therefore, there was no order in vogue or in effect till the institution of the suit, which could be said to have prejudiced the plaintiffs' right and favoured defen-
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